State v. Anderson

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 STATE OF CONNECTICUT v. LONNIE ANDERSON
                (AC 42703)
                      Lavine, Bright and Beach, Js.*

                                 Syllabus

Convicted of the crimes of assault in the first degree by means of the
   discharge of a firearm and assault of a peace officer by means of the
   discharge of a firearm in connection with his actions in shooting at two
   state marshals, the defendant appealed to this court. State marshals Q
   and V arrived at the defendant’s residence to serve a capias warrant
   and take the defendant into custody for failing to appear at a court
   proceeding. Q and V went to the front door of the defendant’s residence
   and were wearing clothing that identified them as state marshals and
   they displayed badges. V was in possession of the capias warrant and
   also was wearing a state marshal’s hat. When the defendant came to
   the door, he provided the marshals with a false name. When the marshals
   confronted him with his photograph and told him that they would be
   taking him into custody, the defendant reached back and pulled out a
   gun. V yelled ‘‘gun,’’ and Q and V, who were unarmed, retreated, running
   in opposite directions. Q received gunshot wounds to his left foot and
   right forearm, while V was uninjured. Bridgeport police officers arrived
   on the scene and subdued the defendant. The defendant’s brother, L,
   who was at the residence, testified at trial that Q and V were readily
   identifiable as state marshals and that he did not observe that the mar-
   shals were armed until one of them stepped into the doorway to grab
   the defendant. Q and V testified that they heard multiple gunshots as
   they sought cover. On appeal, the defendant claimed that the trial court
   improperly declined to instruct the jury on self-defense. Held that the
   trial court did not err in rejecting the defendant’s request for a jury
   instruction on self-defense; there was insufficient evidence to raise a
   question in the mind of a rational juror as to whether the defendant
   shot at Q and V in self-defense, as Q and V were readily identifiable as
   state marshals and it was undisputed that, at the time of the shooting,
   the marshals were in flight away from the defendant and, therefore, the
   jury could not reasonably have found that it was objectively reasonable
   for the defendant to believe that Q and V were about to use deadly
   physical force or inflict great bodily harm and that it was necessary
   that he shoot at them to prevent such conduct.
          Argued May 20—officially released October 20, 2020

                           Procedural History

   Substitute information charging the defendant with
two counts of the crime of attempt to commit murder,
and with one count each of the crimes of assault in the
first degree by means of the discharge of a firearm and
assault of a peace officer by means of the discharge of
a firearm, and with the commission of a class A, B or
C felony with a firearm, brought to the Superior Court
in the judicial district of Fairfield and tried to the jury
before Devlin, J.; verdict and judgment of guilty of
assault in the first degree by means of the discharge of
a firearm and assault of a peace officer by means of
the discharge of a firearm, and the defendant’s sentence
was enhanced for the commission of a class A, B or C
felony with a firearm, and the defendant appealed to
this court. Affirmed.
   Vishal K. Garg, for the appellant (defendant).
  Timothy F. Costello, senior assistant state’s attorney,
with whom, on the brief, were John C. Smriga, former
state’s attorney, and C. Robert Satti, Jr., supervisory
assistant state’s attorney, for the appellee (state).
                         Opinion

   BRIGHT, J. The defendant, Lonnie Anderson, appeals
from the judgment of conviction, rendered after a jury
trial, of assault in the first degree by means of the
discharge of a firearm in violation of General Statutes
§ 53a-59 (a) (5)1 and of assault of a peace officer by
means of the discharge of a firearm in violation of
General Statutes § 53a-167c (a) (1);2 his sentence was
enhanced pursuant to General Statutes § 53-202k.3 On
appeal, the defendant claims that the trial court improp-
erly declined to instruct the jury on self-defense. We
disagree and affirm the judgment of the trial court.
   The record reveals the relevant procedural history
and facts, which the jury reasonably could have found.
On the evening of October 6, 2009, State Marshals
Arthur Quinn, Charles Valentino, Joseph Butler, and
Richard Krueger went to 434 Indian Avenue in Bridge-
port to serve a capias warrant authorizing the marshals
to take the defendant into custody for failing to appear
at a court proceeding. At approximately 7:45 p.m., the
marshals arrived at the residence. Quinn and Valentino
went to the front door, and Butler and Krueger went
to the rear of the residence. Quinn and Valentino walked
up to the residence and knocked on the door. Quinn
and Valentino wore clothing that identified them as
state marshals and displayed badges. Neither marshal
carried a firearm. Valentino was in possession of the
capias warrant and wore a utility belt on which were
attached handcuffs, gloves, Mace, and a police baton.
  An eight year old relative of the defendant answered
the door, and the marshals asked to speak with the
defendant. The child left and returned with Lyman
Anderson, the defendant’s brother. Utilizing a photo-
graph of the defendant, Quinn and Valentino recognized
that Lyman Anderson was not the subject of the capias.
Lyman Anderson then went back into the home, and
the defendant came to the front door.
  The defendant arrived at the front door armed with
a nine millimeter semiautomatic pistol that he kept
concealed in his sweatpants. Upon inquiry about his
identity, the defendant falsely replied that he was John
Anderson. The marshals responded that he was Lonnie
Anderson, informed him that he had missed a court
date, and stated to him that they had a capias warrant
for him. The marshals told the defendant that they
intended to take him into custody. The defendant took
a step back, drew his pistol, and chambered a round.
Valentino spotted the firearm and shouted ‘‘[g]un!’’ The
marshals ran off the doorstep and headed in opposite
directions.
  As they were running away from the defendant’s resi-
dence, Quinn and Valentino heard several gunshots and
Valentino perceived a bullet passing near his head.
Valentino heard additional gunshots as he sought cover
behind a parked van. Valentino observed, through the
vehicle’s windows, the defendant standing on the top
step of the stoop and shooting toward Quinn. Valentino
also saw the defendant discard an ammunition maga-
zine and reload a second magazine into the pistol.
  As Quinn was running, he heard multiple gunshots
and felt a bullet hit his left foot. Quinn also sustained a
second gunshot wound to his right forearm. A neighbor
emerged from his home with a towel to help stop the
bleeding from Quinn’s arm.
  A few minutes later, Bridgeport Police Officer Hugo
Stern received a call, via a police broadcast, about the
incident. Stern arrived at the Indian Avenue residence
and saw uniformed state marshals taking cover near a
red vehicle. Stern also observed someone matching the
description of the shooter. Stern aimed his gun at that
person, who was the defendant, and ordered him to
raise his hands. The defendant complied.
   As Stern cautiously approached the defendant, he
noticed that the defendant wore an empty holster on
his right hip. Stern ordered the defendant to lie on
the ground slowly, and the defendant complied. Stern
directed the defendant to spread his arms and legs on
the ground, and the defendant appeared cooperative.
After Stern holstered his own weapon and attempted
to handcuff the defendant, the defendant resisted by
rising into a crouch and acting combative. Stern saw
the defendant reach into the waistband of his pants and
try to retrieve an item. Bridgeport Police Officer Bobby
Jones arrived at the scene subsequent to Stern’s arrival
and came to Stern’s assistance. Both officers subdued
the defendant. As the officers rolled the defendant over,
they observed that the defendant had been lying on top
of a semiautomatic handgun. The officers seized the
weapon, and later testing demonstrated that the
weapon was the same gun from which several shots had
been fired. Additionally, the weapon had been reloaded
with a magazine full of cartridges.
  In a substitute information, the state charged the
defendant with two counts of attempt to commit murder
in violation of General Statutes §§ 53a-49 and 53a-54a
(a), one count of assault in the first degree by means
of the discharge of a firearm, one count of assault of
a peace officer by means of the discharge of a firearm,
and with the commission of class A, B, or C felonies
with a firearm in violation of § 53-202k.
   On April 25, 2011, the first day of evidence in the
defendant’s trial, defense counsel filed the following
request to charge on self-defense: ‘‘Criminal Jury
Instructions 2.8-1 Self-Defense and Defense of Others—
§ 53a-19. In addition to the language in the pattern
instruction, we request the following: ‘It is a matter of
public interest that potential defenders be able to act
without fear that they will be criminally liable if they
guess wrong about the person they are defending’s
rights.’ See Commissioner v. Martin, 

369 Mass. 640

,
649, 

341 N.E.2d 885

(1976). The Connecticut constitu-
tion, article I, § 15, protects one’s right to carry arms
for his own defense and the defense of the State, and
presumably for the defense of others. Should you
believe that testimony, the fact that the accused might
have brought a weapon to the conflict should not have
been a factor in the trial court’s analysis nor should it
affect this court’s analysis of the self-defense issue.
Under the common law, the fact that a defendant arms
himself after an altercation with an aggressor is consis-
tent with self-defense. See, e.g., Bishop, Bishop on Crim-
inal Law, 9th Ed. § 845 at 601 (1923).’’
   After both parties rested, the court held a charge
conference that addressed the requested instruction on
self-defense. During the conference, defense counsel,
to support the requested charge, relied on the testimony
of Lyman Anderson and Bridgeport Detective Mark
Belinkie, who had interviewed Lyman Anderson follow-
ing the defendant’s arrest and who also had spoken to
Valentino about what had occurred.
   Lyman Anderson had provided the following trial tes-
timony relevant to the defendant’s requested self-
defense charge. The defendant, Lyman Anderson,
Lyman Anderson’s fiancée, and several acquaintances
were using phencyclidine (PCP) and marijuana on the
evening of October 6, 2009. Later, in the same evening,
Lyman Anderson was eating in the kitchen when he
heard radio dispatches going off at the front door. He
went to the front door to get his young relative away
from the door. Lyman Anderson identified several mar-
shals by their uniforms; he also observed that a marshal
was armed, and that the marshals were holding papers.
At least one of the marshals was wearing a hat identi-
fying him as a marshal. Lyman Anderson testified that
he initially observed approximately four marshals at
the front door. He also testified that he originally told
the Bridgeport police during a police interview that he
had initially observed only two marshals at the front
door. He stated that he remembered seeing the defen-
dant come down the stairs and hearing the marshals
ask the defendant if he was Lonnie Anderson. Lyman
Anderson testified that the defendant provided a false
name to the marshals. He also testified that he did not
observe that the marshals were armed until a marshal
stepped in the door to grab the defendant and testified
further that he did not observe the defendant fire a
gun. He testified that, during the shooting, he took his
nephew away from the gunfire and went to the base-
ment of the residence. He also testified that, after firing
at the marshals, the defendant did not want to go outside
to surrender because he was concerned that the mar-
shals would fire back at him.
  Belinkie testified, relevant to the defendant’s request
to charge, that Valentino told him that Quinn tried to
grab the defendant before the defendant drew his
weapon and began firing.
   Defense counsel argued that the testimony of Lyman
Anderson and Belinkie was sufficient to support a self-
defense charge because the jury reasonably could con-
clude that the defendant’s drug use, coupled with armed
men trying to grab him caused the defendant to fear for
his life and defend himself with deadly force. Counsel
further stated: ‘‘Now I—I’d be the first to admit that’s
not, you know, the strongest evidence out there that
I’ve seen in cases. But I think with the slight standard
or no matter how slight, I think, is a language the [cases]
. . . used, I would submit that’s enough. And I’ll just—
with those comments, I’ll of course—I object if it’s not
done, but obviously I don’t have any further
comments.’’
   The state objected to the defendant’s requested
instruction on the ground of the absence of any evi-
dence of self-defense, and it argued further that Belin-
kie’s testimony was not proffered as substantive evi-
dence, but was admitted solely as a prior inconsistent
statement of Valentino. The state further argued that
Lyman Anderson testified that he was taking his young
relative to the basement and was hiding behind a wall
when the shooting occurred and, therefore, there was
no evidence as to what Lyman Anderson specifically
observed, outside of his brother raising a firearm. The
trial court then reviewed Lyman Anderson’s trial testi-
mony. After doing so, the trial court stated: ‘‘So, I’ve
reviewed the testimony of Lyman Anderson, and my
review does not indicate any testimony he gave which
would indicate that the police officers were
approaching Lonnie Anderson in a way that would, even
under our low standard in Connecticut that would jus-
tify a self-defense charge. So—so the defense may have
an exception, but the court does not intend to charge
the jury on self-defense based [on] the present record.’’
After the trial court delivered its jury instructions,
defense counsel took exception to the charge and prop-
erly preserved the issue for appeal. See Practice Book
§ 42-16.
  On April 29, 2011, the jury found the defendant guilty
of the charges of assault in the first degree and assault
of a peace officer, and found the defendant not guilty
on the remaining charges. The court sentenced the
defendant to a total effective sentence of eleven years of
incarceration followed by five years of special parole.4
   The defendant claims on appeal that the trial court
improperly declined to provide a self-defense instruc-
tion to the jury.5 The defendant argues that Lyman
Anderson’s testimony about a marshal stepping into the
threshold of the residence and attempting to grab the
defendant was sufficient to warrant a self-defense
instruction, when considered in the context of the evi-
dence at trial. The defendant argues further that there
was substantial evidence from which the jury could
have concluded that the marshals were not readily iden-
tifiable, had entered the residence without permission,
and were armed. The defendant argues that the jury
reasonably could have concluded that the evidence sup-
ported the defendant’s belief that deadly physical force
was necessary to protect himself because he was con-
fronted by two armed individuals in his home. The
defendant also argues that the jury reasonably could
have concluded from the evidence that the marshal,
who was reaching in to grab him, was about to use
deadly physical force because the marshals were armed
with a variety of weapons, including handcuffs, batons,
and Mace, and at least one of the marshals was armed
with a firearm.
   The state argues, in response, that the evidence did
not warrant an instruction on self-defense because the
evidence at trial could not have supported a finding
that the defendant did not know that Valentino and
Quinn were state marshals, none of the witnesses testi-
fied that either marshal brandished a weapon during
his interaction with the defendant, and the marshals
were fleeing the residence at the time the defendant
fired at them. We agree with the state.
   The following legal principles are relevant to our
analysis of the defendant’s claim. ‘‘In determining
whether the defendant is entitled to an instruction of
self-defense . . . we must view the evidence most
favorably to giving such an instruction.’’ (Internal quota-
tion marks omitted.) State v. Terwilliger, 

294 Conn. 399

,
408–409, 

984 A.2d 721

(2009). ‘‘[T]he fair opportunity
to establish a defense is a fundamental element of due
process of law . . . . This fundamental constitutional
right includes proper jury instructions on the elements
of self-defense so that the jury may ascertain whether
the state has met its burden of proving beyond a reason-
able doubt that the assault was not justified. . . . Thus,
[i]f the defendant asserts [self-defense] and the evi-
dence indicates the availability of that defense, such a
charge is obligatory and the defendant is entitled, as a
matter of law, to [an] . . . instruction [on self-defense].
. . . Before an instruction is warranted, however, [a]
defendant bears the initial burden of producing suffi-
cient evidence to inject self-defense into the case. . . .
To meet that burden, the evidence adduced at trial,
whether by the state or the defense, must be sufficient
[if credited by the jury] to raise a reasonable doubt in
the mind of a rational juror as to whether the defendant
acted in self-defense. . . . This burden is slight, how-
ever, and may be satisfied if there is any foundation in
the evidence [for the defendant’s claim], no matter how
weak or incredible . . . .’’ (Internal quotation marks
omitted.) State v. Best, 

168 Conn. App. 675

, 686, 

146 A.3d 1020

(2016), cert. denied, 

325 Conn. 908

, 

158 A.3d 319

(2017). ‘‘However low the evidentiary standard may
be, it is nonetheless a threshold the defendant must
cross. The defendant may not ask the court to boost
him over the sill upon speculation and conjecture.’’
(Internal quotation marks omitted.) State v. Montanez,

277 Conn. 735

, 750, 

894 A.2d 928

(2006).
  To raise a claim of self-defense sufficiently to warrant
an instruction, ‘‘a defendant must introduce evidence
that the defendant reasonably believed his adversary’s
unlawful violence to be imminent or immediate. . . .
Under General Statutes § 53a-19 (a), a person can, under
appropriate circumstances, justifiably exercise
repeated deadly force if he reasonably believes both
that his attacker is using or about to use deadly force
against him and that deadly force is necessary to repel
such attack. . . . The Connecticut test for the degree
of force in self-defense is a subjective-objective one.
The jury must view the situation from the perspective
of the defendant. Section 53a-19 (a) requires, however,
that the defendant’s belief ultimately must be found to
be reasonable. . . . Moreover, the evidence must be
such that the jury must not have to resort to speculation
in order to find that the defendant acted in justifiable
self-defense.’’ (Citations omitted; internal quotation
marks omitted.) State v. Lewis, 

245 Conn. 779

, 811, 

717 A.2d 1140

(1998).6
  The following additional facts are relevant to our
analysis. At the defendant’s trial, Quinn provided the
following testimony. Quinn, Valentino, Butler, and
Krueger arrived at 434 Indian Avenue in Bridgeport to
serve a capias warrant and drove to the residence in
two state vehicles. Quinn and Valentino were unarmed
and wore their state marshal uniforms with identifiable
markers on the sleeves and back of their shirts. Quinn
and Valentino went to the front door of the residence,
while Butler and Krueger went to the rear of the resi-
dence. After knocking on the door, a young child
answered the door. The marshals asked for an adult
and told the child that they were seeking the defendant.
Lyman Anderson arrived at the door and the marshals
informed him that he did not match the picture attached
to the warrant paperwork that they were carrying.
Shortly thereafter, the defendant arrived at the front
door and provided a false name to the marshals after
he was informed that they had a warrant for his arrest.
After providing a false name, the defendant took a step
back and pulled out a firearm. Valentino yelled ‘‘[g]un’’
and both marshals immediately retreated down the
stairs and ran for cover in opposite directions. Quinn
testified that neither he nor Valentino attempted to grab
the defendant or take him into custody because the
young child was back at the door. As Quinn was running
for cover, he heard multiple gunshots and felt a bullet
hit his left foot. As Quinn sought cover, he realized that
he was also shot in his right forearm.
  Valentino provided the following testimony. Valen-
tino arrived at the 434 Indian Avenue residence to serve
a capias warrant along with Quinn, Butler, and Krueger.
Valentino and Quinn wore their state marshal uniforms
with identifiable markers and were unarmed. In particu-
lar, Valentino wore a hat that identified him as a mar-
shal. Valentino also wore a utility belt with handcuffs,
Mace, gloves, and a baton. After knocking on the front
door of the residence, a young child answered the door.
The marshals informed the child that they were seeking
the defendant, and the young child returned with Lyman
Anderson. Valentino, who had the capias warrant and
a photograph of the defendant, told Lyman Anderson
that he was seeking the defendant. Valentino testified
that the young child remained at the door during the
entire encounter. Valentino stated that Lyman Anderson
and the defendant arrived at the front door. Valentino
informed the defendant that he was looking for Lonnie
Anderson and the defendant provided a false name in
response. Valentino testified that he informed the defen-
dant that he identified him as the subject of the capias
warrant, informed him that he missed a court date,
and stated that the marshals intended to take him into
custody. Valentino testified that the defendant denied
that he was Lonnie Anderson, Valentino showed him
the photograph, and then the defendant reached back
and pulled out a firearm. Upon observing the defendant
pull out a weapon, Valentino yelled ‘‘[g]un’’ and
slammed the door as he retreated away from the stairs.
Valentino and Quinn ran in opposite directions away
from the door. As Valentino was running away from
the door, he heard gunshots in his direction. While
running away from the defendant’s residence, Valen-
tino’s marshal’s hat blew off. Valentino sought cover
behind a van and observed the defendant shooting at
Quinn. On cross-examination, defense counsel asked
Valentino whether he had told the Bridgeport police
that ‘‘everything kind of hit the fan when . . . Quinn
went to grab [the defendant].’’ Valentino denied that
he provided that statement. Defense counsel showed
Valentino a document, which was marked for identifica-
tion purposes only, to refresh Valentino’s recollection
about the statement that he provided to the Bridgeport
police. Valentino responded that he could not recall
providing the statement.
   Jones, who arrived on the scene after the shooting
and assisted in apprehending the defendant, testified
on direct examination that he drove to the scene after
receiving a report on his radio of an officer being shot.
Upon arriving at the scene, he saw an injured male
dressed as a civilian standing near a tree. He testified
that he did not recall what clothes the male was wearing.
He noticed that the male was bleeding. He did not spend
any time with the injured man. Jones further testified:
‘‘Everything right now seems—seems a blur as to the
particulars. . . . Because I was focused on possibly
another threat coming from inside that location.’’ On
cross-examination, Jones testified that the injured male
was not a uniformed officer. On redirect examination,
Jones testified that at no point while on the scene of
the shooting did he see any state marshals.
   After viewing the facts in the light most favorable to
the defendant, we conclude that the trial court properly
declined to instruct the jury on self-defense. The evi-
dence presented at trial was undisputed that, at the time
of the shooting, the marshals were readily identifiable
to the defendant and that the marshals were in flight
at the time the defendant fired his gun.
   As to the defendant identifying Quinn and Valentino
as marshals, Lyman Anderson testified that he identified
the individuals at the door as marshals, one of the mar-
shals was carrying papers, and, at one point, he spoke
to the marshals alone because he believed that the
marshals were there for him due to his recent release
from incarceration. Furthermore, he testified that the
defendant told him, after the defendant fired his gun,
that he did not want to step outside because he was
concerned that the marshals would fire back at him.
Moreover, Quinn and Valentino both testified that they
wore their state marshal uniforms with identifiable
markers on the sleeves and back of their shirts, and
Valentino wore a utility belt with handcuffs, Mace,
gloves, and a baton as the marshals went to the front
of the residence and knocked on the door. Valentino
also testified that he was wearing a marshal’s hat and
Lyman Anderson testified that at least one marshal was
wearing such a hat. Quinn and Valentino both testified
that the defendant arrived at the front door and pro-
vided a false name to the marshals after he was
informed that they had a warrant for his arrest. Valen-
tino testified that the defendant denied that he was
Lonnie Anderson, Valentino presented the photograph
of the defendant, and then the defendant reached back
and pulled out a firearm.
   In response, the defendant relies on Jones’ testimony
that the injured man he saw was in civilian clothes and
that he never saw state marshals at the scene. There
are several problems with the defendant’s reliance on
Jones’ testimony. First, Jones did not arrive on the scene
until after the shooting occurred. Thus, he could not
testify as to what Quinn and Valentino were wearing
when they confronted the defendant before the defen-
dant started shooting. For example, Valentino testified
that the marshal’s hat he was wearing while standing
at the defendant’s apartment door blew off when he
fled after the defendant pulled his gun. Second, Jones
testified that he was responding to a report of an officer
shooting, that the injured male was not a uniformed
officer, and that he did not pay attention to what the
male was wearing. Third, the defendant, at trial, did
not rely on Jones’ testimony as a basis for his self-
defense instruction.
   As to whether the defendant was in imminent danger
when he fired his gun, Quinn and Valentino both testi-
fied that when the defendant pulled out the firearm,
they immediately retreated away from the defendant,
ran down the stairs, and fled in opposite directions.
Quinn and Valentino both testified that they heard multi-
ple gunshots as they ran for cover. Additionally, Valen-
tino testified that, as he sought cover behind a van, he
observed the defendant shooting at Quinn. The defen-
dant failed to present any evidence to the contrary.
  Thus, the evidence adduced at trial indicates that the
marshals immediately retreated from the defendant and
away from the front door of the residence when the
defendant pulled out his firearm and also indicates that
the marshals were in flight, away from the defendant,
at the time the defendant fired his gun. The fact that
Valentino and Quinn were identifiable to the defendant
as state marshals and, more importantly, indisputably
were in flight away from the defendant when he fired
the shots that were the basis for his conviction distin-
guishes this case from the following cases on which
the defendant relies.
  In State v. Deptula, 

31 Conn. App. 140

, 142, 

623 A.2d 525

(1993), appeal dismissed, 

228 Conn. 852

, 

635 A.2d 812

(1994), this court addressed the issue of whether
the trial court improperly failed to instruct the jury on
self-defense. At the defendant’s trial, the state had relied
on the defendant’s statement to the police in which the
defendant stated that his wife had struck him before
he physically attacked his wife.

Id., 148.

Neither the
defendant nor the victim testified at the criminal pro-
ceeding.

Id. Therefore, we concluded

that the trial court
improperly refused to instruct the jury on the issue of
self-defense because the evidence suggested that the
victim was the initial aggressor and there was no duty
for the defendant to retreat because he and his wife
were in their apartment.

Id. Similarly, in State

v. Darrow, 

107 Conn. App. 144

,
145, 

944 A.2d 984

(2008), this court addressed the defen-
dant’s claim that the trial court improperly declined to
instruct the jury on self-defense. The evidence adduced
at the defendant’s trial included two written confessions
and one oral confession from the defendant.

Id., 148.

In the oral confession, the defendant stated that he
caught the victim stealing items from his house and, in
the process of catching the victim in the act, the victim
was killed in the basement as the victim and the defen-
dant engaged in a physical altercation.

Id., 150.

The
state’s chief medical examiner testified that it might
have been possible that the victim sustained his mortal
injury when his head struck a hard piece of wood on
the basement’s cement floor.

Id. On appeal, this

court
concluded that the evidence that the defendant killed
the victim in his house during the altercation was suffi-
cient to entitle the defendant to a self-defense instruc-
tion as a matter of law.

Id., 151.

  In State v. 

Best, supra

, 

168 Conn. App. 677

–79, the
underlying criminal proceeding arose out of the defen-
dant’s shooting of a mother, her daughter and her
daughter’s acquaintance. On appeal, the defendant
claimed that the trial court improperly failed to provide
the jury an instruction on self-defense with regard to
certain charges.

Id., 676–77.

This court concluded that
the defendant was entitled to an instruction on self-
defense as to the shooting of the daughter and her
acquaintance because they did not have permission to
enter the defendant’s apartment, pounded on the defen-
dant’s door with an object, threatened to harm the
defendant, and warned the defendant that they ‘‘ ‘had
backup.’ ’’

Id., 686–87.

This court noted that the defen-
dant was faced with an unknown number of intruders
who were pounding on his door and leveling threats.

Id. This court also

concluded that the defendant was
not entitled to a jury instruction on self-defense for his
conduct toward the mother because, although there
was no dispute that the defendant and the mother were
arguing during the events leading up to the shooting,
none of the evidence adduced at trial indicated that she
posed a threat to the defendant.

Id., 688.

   In each of the cases relied on by the defendant, suffi-
cient evidence was presented that could have raised a
reasonable doubt in the mind of a rational juror as to
whether the defendant acted in self-defense. In contrast,
the evidence presented at trial, in the present case, was
that the marshals, who were in the process of trying
to take the defendant into lawful custody, immediately
retreated from the defendant when he pulled out his
firearm and were in flight at the time the defendant
fired his gun at them. There simply was no basis for
the court to give a self-defense charge when the only
evidence presented to the jury was that the marshals
were fleeing from the defendant when the defendant
fired his firearm. See, e.g., State v. Erickson, 

297 Conn. 164

, 197, 

997 A.2d 480

(2010); State v. Lewis, 

220 Conn. 602

, 619–20, 

600 A.2d 1330

(1991); Commonwealth v.
Miranda, 

484 Mass. 799

, 811–13, 

146 N.E.3d 435

(2020);
State v. Gonzalez, 

143 N.M. 25

, 30, 

172 P.3d 162

(2007);
State v. Niewiadowski, 

120 N.M. 361

, 366, 

901 P.2d 779

(App.), cert. denied, 

120 N.M. 184

, 

899 P.2d 1138

(1995).
Put another way, in light of the undisputed evidence
that Valentino and Quinn were fleeing when the defen-
dant shot at them, there was insufficient evidence ‘‘to
raise a reasonable doubt in the mind of a rational juror
as to whether the defendant acted in self-defense.’’
(Internal quotation marks omitted.) State v. 

Best, supra

,

168 Conn. App. 686

. On the basis of the evidence pre-
sented at trial, the jury reasonably could not have found,
that at the time the defendant fired the gun at the mar-
shals, it was objectively reasonable for the defendant
to have believed both that the marshals were about to
use deadly physical force or inflict great bodily harm
and that it was necessary for him to shoot at the mar-
shals to prevent such conduct. The court, therefore,
did not err in refusing to give the defendant’s proposed
self-defense instruction.
   The judgment is affirmed.
   In this opinion the other judges concurred.
   * The listing of judges reflects their seniority status on this court as of
the date of oral argument.
   1
     General Statutes § 53a-59 (a) (5) provides that ‘‘[a] person is guilty of
assault in the first degree when . . . with intent to cause physical injury
to another person, he causes such injury to such person or to a third person
by means of the discharge of a firearm.’’
   2
     General Statutes § 53a-167c (a) (1) provides in relevant part that ‘‘[a]
person is guilty of assault of public safety, emergency medical, public transit
or health care personnel when, with intent to prevent a reasonably identifi-
able peace officer . . .from performing his or her duties, and while such
peace officer . . . is acting in the performance of his or her duties . . .
such person causes physical injury to such peace officer . . . .’’
   3
     ‘‘[Section] 53-202k is a sentence enhancement provision and not a sepa-
rate crime. . . . [Our Supreme Court] [has] interpreted § 53-202k to require
that the jury, rather than the court, determine whether a firearm was used
in the commission of the underlying felony.’’ (Citation omitted.) State v.
Nash, 

316 Conn. 651

, 656 n.6, 

114 A.3d 128

(2015). General Statutes § 53-
202k provides that ‘‘[a]ny person who commits any class A, B or C felony
and in the commission of such felony uses, or is armed with and threatens
the use of, or displays, or represents by his words or conduct that he
possesses any firearm, as defined insection 53a-3, except an assault weapon,
as defined insection 53-202a, shall be imprisoned for a term of five years,
which shall not be suspended or reduced and shall be in addition and
consecutive to any term of imprisonment imposed for conviction of such
felony.’’
   4
     On September 30, 2011, the defendant first appealed from the judgment
of conviction. On July 26, 2012, the defendant withdrew that appeal. On
March 10, 2015, the defendant filed a pro se petition for a writ of habeas
corpus and, on August 31, 2018, the defendant filed an amended petition
for a writ of habeas corpus arising out of his judgment of conviction. In
the amended petition, the defendant asserted the following claims: (1) his
constitutional right to the effective assistance of trial counsel was violated
and (2) his constitutional right to the effective assistance of appellate counsel
was violated.
   On November 8, 2018, the habeas court denied in part and dismissed in
part the amended petition with regard to the defendant’s claim that the
defendant’s constitutional right to the effective assistance of trial counsel
had been violated. The habeas court granted, in part, the amended petition
with regard to the defendant’s claim that his constitutional right to the
effective assistance of appellate counsel had been violated. The habeas
court granted relief in the form of the reinstatement of the direct appeal of
the underlying conviction. See Kaddah v. Commissioner of Correction,

299 Conn. 129

, 133 n.7, 

7 A.3d 911

(2010). The defendant then filed the
present appeal.
   5
     We note that the defendant stated in his appellate brief that ‘‘it is worth
noting that the trial court’s decision not to instruct the jury was premised
on its belief that Lyman Anderson had not testified that an armed marshal
had reached into the home to grab the defendant during the altercation.’’
Our review of the record reveals that the trial court did not premise its
ruling on the belief that Lyman Anderson had not testified about an armed
marshal reaching into the residence to grab the defendant. During the charge
conference, defense counsel stated that he believed that Lyman Anderson
testified that ‘‘they somehow went to get [the defendant] . . . .’’ In response,
the trial court provided the following statement: ‘‘Well, that’s important. If
Lyman Anderson had testified that there was a—one of the marshals had
advanced for his brother prior to the shots going off?’’ (Emphasis added.)
The trial court then replayed Lyman Anderson’s testimony and ruled that
its review of his testimony did not indicate any testimony that would suggest
that the marshals were approaching the defendant in a manner that would
justify a self-defense charge. Thus, the court considered the entirety of
Lyman Anderson’s testimony, in particular the timing of the marshals’ inter-
actions with the defendant and the shots being fired, and not simply whether,
at some point, the marshals attempted to apprehend the defendant.
   6
     In Connecticut, self-defense is codified in § 53a-19. General Statutes
§ 53a-19 (a) provides: ‘‘Except as provided in subsections (b) and (c) of this
section, a person is justified in using reasonable physical force upon another
person to defend himself or a third person from what he reasonably believes
to be the use or imminent use of physical force, and he may use such degree
of force which he reasonably believes to be necessary for such purpose;
except that deadly physical force may not be used unless the actor reason-
ably believes that such other person is (1) using or about to use deadly
physical force, or (2) inflicting or about to inflict great bodily harm.’’
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